Legal Issues for Startups: Understanding Convertible Notes

Transcription

1 Legal Issues for Startups: Understanding Convertible Notes Presentation to Boston ENET January 4, 2011 Mark A. Haddad Partner Foley Hoag LLP. All Rights Reserved.

2 These materials have been prepared solely for educational purposes. The presentation of these materials does not establish any form of attorney-client relationship with the author or Foley Hoag LLP. Specific legal issues should be addressed through consultation with your own counsel, not by reliance on this presentation or these materials. Attorney Advertising. Prior results do not guarantee a similar outcome. Foley Hoag LLP Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 2

3 What is a Convertible Note First and foremost, it is debt, so it sits above any equity (stock) in the capital stack However, it also has an equity feature in that it converts upon specified events into stock of the company The most common conversion is upon a qualified financing (generally an equity financing of a certain size), but notes can also provide for conversion on other events 2011 Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 3

4 Key Features Conversion rate: Fixed discount or increasing discount over time Can have caps and collars (maximum and/or minimum conversion price) If using caps, try to set a fixed price based on today s cap table Automatic conversion on qualified financing e.g. upon an equity financing of $1m Optional conversion (sometimes included) By investor to common at cap price or other negotiated price By company to common at floor price or other negotiated price upon maturity Interest Converts along with principal Interest rate is generally modest (for example, 5%), unless that is being used with a smaller discount 2011 Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 4

5 Example $100k convertible note, 5% interest, 25% discount upon qualified financing Company raises qualifying Series A at $1.00 per share one year after issuing the note Note converts into shares of Series A: Principal + interest = $105k Note converts at 25% discount, so at a price of $0.75 per share $105k / $0.75 = 140,000 shares of Series A 2011 Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 5

6 Key Features (cont d) Payment on acquisition: Can be based on the discount, can convert at pre-determined price or can be a formula (e.g. 2x return) Maturity date Later the better Give yourself enough runway to get to the next milestone and have at least a 6 month cushion beyond that Collateral (secured or not) Amendment of notes Use a single note purchase agreement that lets a majority of the principal amount of all notes amend the terms 2011 Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 6

7 When to use Convertible Notes In most cases, will be simpler, faster and cheaper than doing a preferred stock financing, but not always Generally speaking $500k or less, use convertible notes $1m or more, use preferred stock (even if seed preferred ) But there are exceptions to both of these Consider your future financing needs: If you may never need to raise more money, do a stock deal or build in an automatic (or optional) conversion of the notes at maturity Consider if you are able to value the stock: Often convertible notes are a way to treat friends and family money fairly by deferring a valuation until sophisticated investors can negotiate with the company 2011 Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 7

8 Company Pros and Cons Faster and cheaper to execute More control over your company (notes do not vote, and generally you don t give board seats or significant protective provisions to note holders) Delays dilution until you can increase the valuation Risk of getting to maturity date without resources to repay or a plan B Quickly insolvent on paper as the money is spent (although this helps with valuation position with respect to employee options and equity) 2011 Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 8

9 Investor Pros and Cons Faster and cheaper to execute Discount can be small compared to the relative risk of the investment (misalignment of interests) Valuation is too high in homeruns (can be mitigated by the use of caps) Having debt in an insolvent entity is not much protection Less control over the investment (delaying typical investor protections until conversion, but can negotiate for some, like pre-emptive rights or info rights) Will not qualify for special capital gains treatment available to investments made in qualified startups (generally C corps) in 2011 (unless converted in 2011) 2011 Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 9

10 Seed Preferred Alternative Increasingly, a number of Series A Lite or Seed Preferred deals are being done as an alternative to convertible notes Provides for equity without all of the usual bells and whistles of a full Series A deal Usually has at least a liquidation preference and preemptive rights, but may not have many more investor protections than that 2011 Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 10

11 Other Resources Glossary (commonly used terms) Ask the Startup Lawyers (common questions and answers; submit your questions!) Foley Hoag Venture Perspectives (our quarterly publication tracking terms of New England VC deals) VentureFizz article: Should I raise my seed round using a convertible note or preferred stock? Foley Hoag LLP. All Rights Reserved. Understanding Convertible Notes 11

12 Questions? Mark A. Haddad Partner Foley Hoag LLP. All Rights Reserved.